1. Respondent No. 3 Harendra Dutt Tripathi who is the landlord of the house in question filed suit No. 28 of 1977, under S. 20 of U.P Act No. XIII of 72 seeking eviction of the tenant-present petitioner Bharat Bhushan Misraon the ground that he was in arrears of rent from August, 1976. The rate of rent was claimed to be Rs. 70/- per month. The suit was contested, inter alia, on the ground that the rate of rent was Rs. 30/- and not Rs. 70/- per month. The evidence in the suit concluded on 18-1-80 and the suit was fixed for arguments for 7-2-80 from date it was adjourned to 21-2-80. The plaintiff-landlord moved application under O. 15 R. 5 C.P.C, seeking striking off the defence of the tenant on the ground that he failed make the deposits as required under the said provisions. The defendant-tenpnt filed objections raising the plea that the entire rent up to Feb. 1980 had been deposited though rent for certain intermediary months was not deposited strictly within the requisite time of one week from the date of accrual of the rent. Learned Munsif exercising Small Causes powers recorded findings of fact that the defendant-tenant deposited rent for certain months beyond (he permitted time. The details of the default in the form of delayed deposits were given as follows:
Period for which rent was due deposited on
May, 1977
5-7-1977
June, 1977
8-8-1977
August, September & October, 1977
1-12-1977
November, December, 1977 & January, 1978
22-2-1978
February & March, 1978
4-5-1978
May, June & July, 1978
7-9-1978
August, September and October, 1978
16-12-1978.
November & December, 1978
8-2-1979
February, Search and April, 1979
7-7-1979
May and June, 1971
August, 1979
September & October, 1979
December, 1979
December, 1979
22-1-1980
2. The learned trial court on the basis of the delayed payments as above held that the defendant-tenant committed default and failed to comply with the requirements of O. 15, R. 5, C.P.C and this rendered his defence to be struck off. The revision against the judgment and order of the trial court was dismissed by the District Judge, Gonda, on 18-12-1980.
3. The validity of the impugned orders have been challenged mainly on two grounds, firstly that the explanation offered by the defendant-tenant (present petitioner) for delay in making the deposits of the rent for certain months was not duly considered and secondly that the question for consideration of the application under O. 15, R. 5 C.P.C did not arise at the stage when the suit was listed for arguments. It is also submitted that the provisions of 0. 15. R. 5 C.P.C required to be considered liberally and not literally and strictly as has been done by the two courts in this case.
4. This is the uncontroverted position that the prayer for striking off the defence under 0. 15, R. 5 C.P.C was made when the suit had reached the stage of arguments. Learned connsel for the respondent had relied on a decision of this Court in Sohan Lal v. Hodal Singh, in Civil Misc. Writ Petn. No. 1947 of 1977, decided on 31-1-1979 as reported in Summary of Cases 1979 (5) All LR 78 : (AIR 1979 All 230). The defence in that case was struck off by the revisional authority. This order was upheld by this Court with the observation that the word ‘may’ even it was prima facie enabling, the legislature used it in the sense of must or shall and a court is obliged to pass an order striking out the defence if the conditions of O. 15, R. 5 C.P.C have not been complied with. It was, however, further observed that under R. 5 a court can after considering any representation made by a tenent allow him further time for Jepositing the rent but this cannot be interpreted as meaning that the striking off the defence is discretionary. The fact that the Legislature has conferred power on a court to extend time that cannot be interpreted to mean that the court left it optional to obey or not.
5. As against this, there is a recent decision of this court in Rajendra Pal Yarg v. Additional District Judge, Dehradun, (1987) 2 All Rent Cas 289. In that case application under O. 15, R. 5 C.P.C was moved after evidence had been recorded. The trial court rejected this application. The Revisionai court remanded the matter with the direction to the trial court to decide the application as a preliminary issue for striking off the defence under the said provision. The writ petition was allowed with the observation that:
“Since the plaintiff has already closed his evidence and three witnesses have been examined on behalf of the petitioner, in my opinion, it is not proper to decide the preliminary issue at this stage.”
The decision in Rajendra Pal Garg's case (1987 2 All Rent Cas 289) being latter, I am bound by it. Even otherwise 1 respectfully agree with the view adopted in Rajendra Pal Garg's case. The power to strike out the defence is conditioned by the fact thai the court is to consider any representation as may be made by the defendant, Such representation made by the defendant as to the default for payment of arrears month after month rent Such representation as is provided in sub-rule (2), is to be made within ten days of the first hearing or, of the expiry of the week referred to in sub-rule (1) as the case may be. Appropriate course for a defaulting tenant obviously is to make representation within the time permitted under sub-rule (2). In the present case however, there was no prayer for striking off the defence and in away that could have become a contributory factor for delayed deposit in respect of certain months. The suit was filed on 30-5-77 and as would appear from the order of the trial court there was no default in payment of arrears of rent for the period prior to April, 1977 and for that reason there was no case to seek striking off the defence. Had any application been moved under O. 15, R. 5 C.P.C at the stage of first hearing of the suit, that would have alerted the defendant and the deposit could have been made month after month as per the requirement of the said provision the plaintiff respondent chose not to seek the striking out of the defence of the defendant-petitioner land delay occurred in payment of rent for Icertian months. The fact, however, remains that admittedly the entire rent due up to February, 1980 had been deposited by the defendant-petitioner. Learned counsel for the respondent submits that rent for the months regarding which there is no reference in the order of the trial court was actually not deposited. This submission cannot be accepted because the position which transpires is that the learned trial court had only mentioned months for which there was delay in payment. As for the other months the payments would obviously have been made within the specified time. In the facts of the present case there was no jusification I for striking off the defence when the evidence had been concluded and the suit was at the largumenl stage.
6. The defendant-petitioner had submitted his explanation for the delayed payment. It is submitted that the plea of the defedant raised by way of explanation for the delay was not controverted by any objection or affidavit and that the learned trial court or the Revisional Court did not consider the explanation submitted by the defendant-petitioner. As has already been observed order for striking off defence can be passed only after the representation by the defedant has been duly considered. The representation of the defendant-petitioner was, however, not considered in the present case and the impugned orders have been passed mainly on the ground that if there is default in compliance with the conditions of O. 15, R. 5 C.P.C the defence is necessarily to be struck out. The law laid down in Sohan Lal v. Hodal Singh's Case (AIR 1979 All 230) (supra) is no more good law. The provision of 0. 15, R. 5 C.P.C was subjected to interpretation by Hon'ble Surpeme Court in Bimal Chand Jain v. Sri Gopal Agarwal, 1981 All Rent Cas 463: (1981 All LJ 908). Following observations made in that decision may usefully be reproduced:
“We must remember that no order under sub-rule (i) striking off the defence is in the nature of a penalty. A serious responsibility rests on the court in the matter and the power is not to be exercised mechanically. There is reserve of discretion vested in the court entitling it not to strike off the defence if on the facts and circumstances already existing on the record it finds good reasons for not doing so. It will always be a matter for the judgment of the court to decide whether on the material before it, not with standing the absence of a representation under sub-rule (2), the defence should or should not be struck off. The word “may” in sub-rule (1) merely vests power in the court to strike off the defence. It does not oblige it to do so in every case of default. To that extent, we are unable to agree with the view taken by the High Court in Puran Chand (supra). We are of the opinion that the High Court has placed an unduly narrow construction on the provision of clause (1) of Rule 5 of Order XV”.
7. This question came up for consideration before this court in Sultan Ahmad v. Gobardhan Das, (1983) 1 All Rent Cas 161). Purpose of R. 5 O. 15 was explained in this case with the observation that it was not intended that this provision may be made basis for eviction of the tenants and should be interpreted to cover only those cases where there was deliberate default in payment of arrears of rent. This decision was given following the observation of the Supreme Court in Bimal Chand Jain's case (1981 4 All LJ 908) (supra) and also in Jugmandar Das v. Ram Phal, 1982 All Rent Cas 2 : (AIR 1982 All 102). I respectfully agree with the view expressed and the interpretation laid down in Sultan Ahmad's case and I am of the view that in the facts of the present case the learned trial and the revisional court ought not to have taken literal and narrow interpretation of the provisions of O. 15, R. 5 C.P.C The explanation submitted by the defendant in the suit merited acceptance. This is not a fit case for exercising discretion in directing defence to be struck off for the default reflected in the delayed deposits of rent for certain months after the institution of the suit. Moreover, this request for striking off the defence ought not to have been considered after the evidence had been closed and the suit was listed for arguments.
8. For the reasons as above, the writ petition merits to be allowed and the impugned orders requiring to be quashed. The writ petition is allowed and the impugned orders of the learned Munsif Gonda dated 5-4-1980 and also the order of the District Judge, Gonda, dated 18-12-1980 are quashed. The learned trial court shall be required to consider the defence of the defendant-petitioner and proceed to decide the suit on merits. Parties shall bear their own costs. Copy of this judgment be issued to the parties, within one week, on payment of requisite charges.
9. Petition allowed.